More Bad Judges

January 8, 2004

Here comes the sequel to the Scalia Clones and Thomas Clowns. Karl Rove’s White House laboratory has litmus-tested and shipped another batch of extremist nominees to the Senate Judiciary Committee for its members’ consent, after not asking for their advice. Hearings are expected to begin soon after Congress reconvenes at the end of January.

These nominees will get the deepest possible scrutiny because of a curiously underreported scandal. In a new excess of zealotry, Republican staffers have stooped to snooping–hacking into the computers of Judiciary Committee Democrats Ted Kennedy and Richard Durbin, stealing fifteen confidential memos and disseminating them to “friendly” media outlets like the Wall Street Journal editorial page and the Washington Times. The e-mails, whose theft became known only when the Journal‘s editorial page quoted them in November, contained shocking revelations like the fact that Democrats are in touch with the NAACP Legal Defense Fund and People for the American Way.

Judiciary Committee chair Orrin Hatch eventually admitted the hacking. He suspended (with pay) one of his own junior staffers and declared himself “mortified” and “shocked,” adding, “There is no excuse that can justify these improper actions.” It now appears that Manuel Miranda, a senior aide to Senate majority leader Bill Frist, distributed the e-mails to right-wing lobbying groups and propaganda outfits. Miranda previously worked for the Republicans on the Judiciary Committee and was a public advocate for defeated Bush nominees like Miguel Estrada.

When reached at home, Miranda took the position that “there was no wrongdoing.” He added, “The bottom line here is that the technology staff of the Democrats was negligent. They put these memos in a shared hard drive. It was like putting the memos on our desk. The Kennedy and Durbin memos are not Senate business. They are collusive, partisan politics. No Senate rule was violated. There was no hacking, no breaking and entering.” Senate Democratic staffers dispute this, saying whoever hacked into their computer files needed a password. The computer invasion is being investigated by Senate sergeant-at-arms William Pickle, who has hired counterespionage expert David Lang.

The combination of more noxious nominations and these dirty tricks has upped the ante in the current judicial filibuster fight, in which the Democrats have so far blocked six Bush nominees. Some evangelical Christian and “family values” pressure groups, plus Senator Trent Lott, are urging Frist to use the “nuclear option” to abolish judicial filibusters. One such option involves having whichever GOP senator is presiding over the Senate at the time rule a filibuster against a nominee out of order and then rule that his position needs only fifty-one votes to be sustained, not the sixty needed to end debate. Some scholars, however, believe the “nuclear option” is unconstitutional and would end up in the courts. Democrats say it will shut down the Senate if used.

3

4

5

Senators Kennedy, Durbin, Charles Schumer, Tom Daschle, Patrick Leahy and their allies began their strategy of filibustering only against what they regarded as “the worst of the worst” Bush nominees in 2002, thinking that what they were attempting was intellectually and morally necessary but that they might pay a price in short-term politics, being seen as obstructionist in the court of public opinion. Now they think they are winning the politics, too. For example, the Washington Post editorial page, which supported Estrada’s nomination, has opposed several recent Bush nominees as outside the mainstream. The Republicans are the ones who are coming across as intolerant fanatics. Democrats have used the filibuster only against a half-dozen out of 175 Bush nominees; by comparison, GOP senators blocked more than sixty of Bill Clinton’s nominees–most by never giving them a hearing or a vote.

The surprising success of the Democrats’ strategy has caused stresses and dissension within the Republican coalition. The religious right and antichoice activists expect Bush and Frist to do more than lose cloture votes and deliver speeches calling liberals names. They want the “nuclear option” exercised. And they are muttering that Hatch and Frist are too liberal and lack the will to fight. But even the most conservative senators know they don’t have the votes and that a Senate shutdown could generate a public opinion backlash against them, as the government shutdown did in 1995. In November they were reduced to using the pointless public relations stunt of a forty-hour Senate session that accomplished nothing and ended with the Democrats winning another round of cloture roll calls.

Bush’s next wave of unfit nominees is now being vetted by the angry Democratic staff of the Judiciary Committee. Three of the twenty or so are clearly contenders for the “worst of the worst.”

Brett Kavanaugh has no judicial experience and, at 38, would be one of the youngest members in the history of the Court of Appeals for the Washington, DC, Circuit–the bench that sent Antonin Scalia and Clarence Thomas directly to the Supreme Court. Kavanaugh is the principal author of Ken Starr’s prurient final report to Congress on President Clinton. He drafted the grounds for impeachment and, after leaving the independent counsel’s office, went to work at Starr’s law firm, Kirkland & Ellis.

GET A DIGITAL SUBSCRIPTION
FOR JUST $9.50!

Kavanaugh has never participated in a trial. In his Judiciary Committee questionnaire, he was asked to list his ten most significant cases; four of those he cited did not even involve a courtroom appearance, and in two he merely filed a Supreme Court amicus curiae brief for a third party. Most recently, Kavanaugh has worked in the White House selecting Bush’s judicial nominees, coordinating the unsuccessful nominations of Estrada and Priscilla Owen.

When he worked for Ken Starr, Kavanaugh spent a lot of his time trying to challenge President Clinton’s assertions of executive privilege. But one of his jobs in the Bush White House has been to defend claims of executive privilege. Kavanaugh has blocked a Senate committee from getting to see Enron-related documents, and he wrote the executive order that blocked the release of presidential papers, despite a federal law requiring that they be made public after twelve years.

Meanwhile, a coalition of environmentalists, the Leadership Conference on Civil Rights, the Alliance for Justice and the National Congress of American Indians is urging full investigation of alleged ethical improprieties by William Myers before hearings are scheduled for his nomination to the Court of Appeals for the Ninth Circuit. As the solicitor for the Interior Department, Myers has participated in a series of decisions favorable to cattle, mining and timber interests, and damaging to public lands and Native American tribes. Even before he was nominated, environmentalists had filed an ethics complaint against him, accusing him of violating his recusal agreement by meeting with his former lobbying and legal clients. Of all the Bush Cabinet agencies, Interior is probably in the deepest collusion with special interests and campaign donors. But these politicized decisions tend to be administrative regulations so technical, obscure and localized in the West that they don’t get on the national radar screen. For example, last March, the Interior Department gave notice that it was proposing weakening grazing regulations adopted by the Clinton Administration and upheld by the Supreme Court. As a lawyer and lobbyist, Myers had been active in challenging these same regulations.

Myers also wrote two separate law review articles defending Judge Robert Bork and attacking the Senate for rejecting Bork’s nomination to the Supreme Court.

A third horror in the pipeline is Claude Allen, awaiting renomination to the Court of Appeals for the Fourth Circuit and now the Deputy Secretary for Health and Human Services. Allen has supported antichoice statutes and regulations; urged sexual abstinence as the solution to AIDS and teen pregnancy; and opposed expanded health insurance for poor children. Allen has been involved in Republican politics for many years. In fact, Allen, who is African-American, was Jesse Helms’s press secretary during Helms’s racist campaign for re-election in 1984.

Bush is trying to transform America through lifetime judicial appointments for this biased batch and their clones. The bottom line is that the reckless Bushies are willing to violate computer privacy and vandalize the Bill of Rights to expedite this transformation. George W. Bush was appointed President by the Supreme Court after losing the popular vote by more than 500,000. Now he is trying to use the courts to legislate a mandate the voters never gave him by abusing the power of appointment and ignoring the Constitution’s “advise and consent” clause.

Jack Newfield Jack Newfield is a veteran New York political reporter and a senior fellow at the Nation Institute. He is the author of, among others, The Full Rudy: The Man, the Myth, the Mania (Nation
Books) and, most recently, American Rebels